Your Homework Assignment: Sue the Federal Government
By Ben Protess
Some law school students send the Justice Department resumes and references. At the University of Virginia School of Law, one class is sending document requests and lawsuits. The students, along with professors and a university librarian, are tackling the contentious world of white-collar crime, challenging federal prosecutors to unseal settlements with big banks and corporations. In a matter of months, the classroom litigators at the law school’s First Amendment clinic filed their first lawsuit against the Justice Department and won the release of a secret settlement deal. Building on the test case, the clinic ramped up its effort this week, filing a Freedom of Information Act request to obtain 30 other settlement deals that remain under wraps, a preliminary move that could foreshadow another lawsuit. The deals — mostly nonprosecution agreements with the British bank HSBC, the casino Las Vegas Sands Corporation and a smattering of other corporate giants — spared the companies indictment in exchange for cash penalties and other concessions. The clinic’s effort, which echoes broader public and congressional concern that nonprosecution agreements amount to a slap on the wrist, may shine a light on the fine print of the few deals that are not already public. The clinic’s first lawsuit, which focused on a sealed nonprosecution agreement with a tree landscaping company, argued that the secrecy undermined “the strong public interest in understanding the judicial system and why admitted wrongdoers are not criminally prosecuted,” underscoring the broader purpose of the students’ effort. “You can’t have a robust public debate when you can’t see what your government is up to,” said Paula Salamoun, 25, a third-year law student who drafted much of the clinic’s first lawsuit against the Justice Department. The Department of Justice declined to comment for this article. The secret deals are the exception rather than the rule. It is up to an individual United States attorney’s office to make the deals public, and 90 percent of the roughly 300 nonprosecution and deferred prosecution agreements reached over the last 25 years or so are unsealed, according to a database maintained by Brandon L. Garrett and Jonathan Ashley, both of the Virginia law school. Mr. Ashley is the law school’s business research librarian, while Professor Garrett teaches law and is the author of the forthcoming book, “Too Big to Jail: How Prosecutors Compromise With Corporations.” After scanning prosecutors’ news releases and searching court dockets, Mr. Ashley and Professor Garrett pinpointed 31 missing deals. The gap presented something of a mystery: Why would prosecutors talk up a case only to hide the underlying agreement from the public eye? In some cases, there might be an innocent explanation. The deal, for example, might have slipped through the cracks during a period that predated the era of online court records. But in other cases, the students said, the lack of transparency seemed arbitrary. And without access to the agreements, they could not understand why prosecutors settled on a certain fine or imposed a particular reform. The seven-student clinic started the project small, or at least alphabetically, questioning the case of ABC Professional Tree Services. Although prosecutors in Houston issued a 2012 news release announcing a nonprosecution agreement with ABC — and a $2 million penalty to resolve claims that the company’s work force included undocumented immigrants — the deal was nowhere to be found. In June 2012, the clinic filed a request under the Freedom of Information Act, the federal law that generally requires government agencies to divulge documents on request from the public. But the government resisted, citing a battery of exemptions to the law. “Something didn’t smell right,” said John Castle, 26, a second-year law student at the clinic. “It was not clear why they had invoked these exemptions.” And so, with no shortage of helpers, the students decided to sue. The clinic’s co-leaders — Josh Wheeler, director of the Thomas Jefferson Center for the Protection of Free Expression, and Bruce D. Brown, the executive director of the Reporters Committee for Freedom of the Press — oversaw the process. Emily Grannis, a freedom of information legal fellow at the Reporters Committee, edited the students’ work. And Mr. Ashley agreed to file the complaint in his name. After an initial fight, prosecutors reversed course last month and released the six-page nonprosecution agreement. The government offered no explanation for the change of heart. The experience emboldened the students to request the 30 remaining deals, which spanned the last two decades and a number of industries. Edward D. Jones struck a deal in 2004, the Roman Catholic Archdiocese of Boston settled a sex abuse scandal in 2005, and the medical devices company C. R. Bard reached an agreement last year — all of which remain private. HSBC’s 2001 deal stemmed from a subsidiary admitting to fraud, while Las Vegas Sands paid $47 million to prosecutors in California to avoid prosecution for its “failure to alert authorities that a high-stakes gambler, who was later linked to international drug trafficking, made numerous large and suspicious deposits with the casino.” For law school students, typically schooled on the minutiae of civil procedure but unprepared to write an actual brief, the clinic is a rare chance to cut their teeth on real-world litigation. The clinic, a yearlong class that provides course credit, also went to court to secure reports that an independent monitor filed about the American International Group in the years leading up to the 2008 financial crisis. Of course, all this real-world experience might irritate a few prosecutors. But the students were not seeking jobs at the Justice Department to begin with. Ms. Salamoun has lined up a job at a Washington law firm, and Mr. Castle is interested in working at another government agency: the Federal Communications Commission.
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